Colloquies for Those with Limited English Proficiency Require Something More than Rote Questioning to be Valid

By Benjamin Lowenthal -

State v. Ernes (HSC June 17, 2020)

Background. Erik Ernes was charged with assaulting a law enforcement officer in the second degree. He appeared in the district court with a Chuukese interpreter to assist him. The district court with the Hon. Judge Lono Lee presiding, addressed Ernes:

          Court:        Okay, good morning, Mr. Ernes.

          Ernes:        (In English) Good morning.

          Court:        I just received a waiver of jury trial                             form. Did you sign it?

          Ernes:        (Through the interpreter) Yes.

Court:    Okay. Did you review it with your attorney?

          Ernes:        (Through the interpreter) Yes.

Court:        Okay. Did she explain to you what a jury trial is?

          Ernes:        (In English) Yes.

Court:        Okay. For the record, a jury trial is where you have an opportunity to help select 12 people from the community. The State needs to prove its case beyond a reasonable doubt to all 12 jurors, and all 12 jurors must agree before you can be found guilty. Is that your understanding?

          Ernes:        (Through the interpreter) Yes.

Court:        Yes. Okay. Is your mind clear today?

          Ernes:        (In English) Yes.

Court:        Okay, how much education do you have? High school? College?

Ernes:        (In English) No, just have high school.

Court:        High school? Okay. Do you understand your right to a jury trial?

          Ernes:        (Through the interpreter) Yes.

Court:        Yes. Is anyone forcing you to give up this right?

          Ernes:        (In English) No.

Court:        All right, thank you. Court will find defendant knowing, voluntary, (indiscernible) right to jury trial, enter a not guilty plea, request Chuukese interpreter next proceeding.

At a bench trial, Ernes was found guilty and sentenced to 30 days jail. Ernes appealed. The ICA affirmed.

Waiving the Right to a Jury Trial. The defendant’s waiver of the right to a jury trial must be knowing and voluntary. State v. Ibuos, 75 Hawai'i 118, 121, 857 P.2d 576, 578 (1993). The trial court is required to engage in an oral colloquy to establish the waiver on the record. State v. Gomez-Lobato, 130 Hawai'i 465, 469, 312 P.3d 897, 901 (2013). Determining a valid waiver is based on a review of the totality of the circumstances and taking into account the defendant’s “background, experience, and conduct.” State v. Friedman, 93 Hawai'i 63, 70, 996 P.2d 268, 275 (2000).

Language Barriers Require a bit more. The HSC reviewed a series of cases involving defendants with language barriers and concluded that “trial courts must ensure adequate protection of the constitutional rights of defendant who have limited English proficiency.” See United States v. Duarte-Higareda, 113 F.3d 1000 (9th Cir. 1997) and State v. Han, 130 Hawai'i 83, 306 P.3d 128 (2013). A language barrier is a “salient” fact that underscores the need for a solid and strong colloquy.

In this case, Ernes had a language barrier, a “salient fact” known to the court. On top of that, the district court did not engage in a true colloquy. The “for the record” comment was not an actual exchange between Ernes and the court. The HSC also pointed out that most countries, including the Federated States of Micronesia, do not have jury trials. Moreover, in other countries a bench trial is conducted by a single judge whereas in other countries there may be a panel of three. And so the difference between the jury trial and the bench trial must be explained to the defendant. The HSC vacated the judgment and remanded the case.

Chief Justice Recktenwald’s Dissent. The CJ disagreed and would have held that the colloquy was sufficient. There is no real dispute here about the standard—a review of the totality of the circumstances to determine a knowing, intelligent, and voluntary waiver. The dispute centers around whether this record adequately establishes a waiver. For the CJ it did. The district court informed Ernes about the right to a jury trial, selecting jurors, unanimity, and giving up that right. He had a lawyer and an interpreter with him to assist him. There was even a form. The CJ noted while there “will always be more information that could have been elicited during a colloquy,” there was enough here. Justice Nakayama joined.

So What Does the Court Want? It seems that the HSC is looking for active questions that will show an understanding. There can be no real formulaic way of doing this and it must truly be assessed by trial courts individually. The majority appeared to be looking for some kind of engagement between the court and Ernes. It emphasized open ended questions and recommended in the future more details to get a better sense of what the defendant thinks is going on.


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